People v. McPherson, 93CA1177

• Decision Date: 18 May 1995
• Docket Number: No. 93CA1177,93CA1177
• Citation: 897 P.2d 923
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony F. McPHERSON, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 923

897 P.2d 923

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony F. McPHERSON, Defendant-Appellant.

No. 93CA1177.

Colorado Court of Appeals,

Div. I.

May 18, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Susan J. Schneider, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Faith Legal Services, D. Dale Sadler, Denver, for defendant-appellant.

Opinion by Chief Judge STERNBERG.

The defendant, Anthony Francis McPherson, appeals a judgment revoking a deferred judgment and imposing a two-year sentence. We affirm, but remand the cause for correction of the mittimus.

The defendant was charged with theft of $300 or more, a class 4 felony, pursuant to § 18-4-401(1)(a), C.R.S. (1986 Repl.Vol. 8B). Pursuant to a Joint Motion for Deferred Judgment and Sentence, defendant entered a plea of guilty, and, on December 6, 1991, the court granted a deferred judgment for a period of two years. This motion was signed by the district attorney and the attorney for the defendant, but not by the defendant. Conditions of the deferred judgment required defendant to contact his probation officer and to pay restitution and supervision fees on a monthly basis.

In July of 1992, the district attorney filed an application to revoke the deferred judgment, claiming that the defendant had violated the conditions of the deferred judgment by not maintaining contact with his probation officer and by not making payments as required.

Defendant's probation officer testified at the revocation hearing that defendant had not contacted him or made any payments since March of 1992. Based on this testimony, the court found that defendant had violated the conditions of the deferred judgment and on April 8, 1993, ordered the deferred judgment to be revoked, entered a judgment of conviction on the guilty plea, and sentenced defendant to two years in prison. This appeal followed.

I.

Relying on § 16-7-403, C.R.S. (1994 Cum.Supp.), defendant contends that the trial court lacked statutory authority to grant a deferred judgment, to revoke it, or to impose a sentence in connection therewith because he had not signed the joint motion. We do not agree.

Section 16-7-403 provides that:

(1) In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his attorney of record and the district attorney, to continue the case for a period not to exceed two years from the date of entry of such plea for the purpose of entering judgment and sentence upon such plea of guilty....

(2) Prior to the entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney in the course of plea discussion ... is authorized to enter into a written stipulation to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation.

Just as probation is a privilege, not a right, see People v. Ickler, 877 P.2d 863 (Colo.1994), so too is deferred sentencing a privilege. It is the defendant who is the primary beneficiary of a procedure which ultimately may result in the dismissal of the charges against him. See People v. Ybarra, 190 Colo. 409, 547 P.2d 925 (1976).

In Ybarra, the court was dealing with a deferred prosecution, as distinguished from the deferred sentencing involved here. Nevertheless, that case is instructive. There, the trial court approved a deferred prosecution based on an application made by the defendant. The defendant's attorney stated on the record: "[W]e will tender a written waiver of right to speedy trial, too." Such waiver was not filed. A condition of the deferred prosecution was that defendant make restitution. A year later, when the district attorney became aware that restitution payments had not been made, he attempted to proceed with prosecution of the case. Ybarra moved for dismissal because the statute required that, when a defendant consents to a deferred prosecution, "the defendant shall execute a written waiver" of his right to speedy trial. The trial court agreed with defendant and dismissed the charges.

The supreme court reversed, holding that defendant's failure to execute a written waiver as required in the deferred prosecution statute should not inure to her benefit. People v. Ybarra, supra.

Similarly, here, when he was given a deferred judgment, the defendant received the benefit of liberty, subject to certain imposed conditions. See People v. Ledford, 173 Colo. 194, 477 P.2d 374 (1970). Defendant did not object to a grant of a deferred judgment or to any of its terms and conditions until revocation. Instead, he signed a form during an interview with his probation officer on January 15, 1992, consenting to the deferred judgment and its terms and conditions. Initially, defendant complied with the terms and conditions of the deferred judgment i.e., he made a restitution payment in March 1992.

Under these factual circumstances, we hold that defendant cannot now use his failure to sign the joint motion for deferred judgment as a means to render the deferred judgment void. See People v. Ybarra, supra.

Defendant's reliance on People v. Appelhanz, 738 P.2d 1182 (Colo.1987) is misplaced. There, over the objection of the district attorney, the trial court entered a deferred judgment. The supreme court reversed, holding that: "[W]here either of the parties object, the court does not have the power to enter the deferred sentence and judgment." People v. Appelhanz, supra, at 1184. In this case, not only does the record show no objection by the defendant, but it demonstrates consent by all the parties.

II.

We also reject defendant's assertion that the district attorney violated his right to speedy disposition by not proceeding with revocation of the deferred judgment in a timely manner.

Defendant first contends that § 16-14-104, C.R.S. (1986 Repl.Vol. 8A) required the deferred judgment revocation proceeding to be tried within ninety days of the issuance of the July 2, 1992, warrant for his arrest. We agree with the trial court's ruling that § 16-14-104 was inapplicable.

Section 16-14-104 applies only when the defendant "is in the custody of the department of corrections." See § 16-14-102(1), C.R.S. (1986 Repl.Vol. 8A). At the time of defendant's request for speedy disposition, he was incarcerated in a county jail in Mississippi and, thus, was not in the custody of the department of corrections.

Further, because defendant's deferred sentence was not revoked at the time of the request, he was not imprisoned as contemplated by § 16-14-102(1). Therefore, he was not entitled to have the charges against him tried within 90 days. See People v. Ybarra, 652 P.2d 182 (Colo.App.1982).

Contrary to defendant's assertion, an outstanding arrest warrant is not an "indictment, information, or criminal complaint" which triggers the application of § 16-14-104. See People v. Gonzales, 679 P.2d 1085 (Colo.1984).

A defendant may waive his speedy trial rights by freely acquiescing in a trial date beyond the ninety-day period provided by § 16-14-104. Martin v. People, 738 P.2d 789 (Colo.1987).

Here, defendant moved for and received a continuance of the revocation proceeding and did not object when the district attorney agreed to the continuance subject to a waiver of the request for speedy disposition. Accordingly, we conclude that the defendant waived his right to object to a violation of § 16-14-104.

Defendant also claims that the district attorney unreasonably delayed taking him before the nearest judge of a court of record and, therefore, violated the provisions of § 16-11-205(3), C.R.S. (1986 Repl.Vol. 8A). This section, however, is inapplicable here because it applies only to warrantless arrests by a probation officer.

III.

Defendant argues that the trial court erred in not advising him properly and in a timely manner of the charges against him and the possible penalties as required by § 16-11-206(2), C.R.S. (1986 Repl.Vol. 8A). Defendant...